Reminder Regarding H-2A and H-2B Fees

USCIS issued a reminder to employers as the traditional harvest season approaches, that certain fees may not be collected from H-2A and H-2B workers, according to 8 C.F.R. § 214.2(h)(5)(xi)(A) and § 214.2(h)(6)(i)(B).   They recommend petitioners refer to U.S. Department of Labor (DOL) guidelines on employers’ obligation to avoid passing costs to H-2A workers. To facilitate the processing of Form I-129, Petition for a Nonimmigrant Worker, it is important that petitioners properly complete the form and answer the questions about petitioners’ recruitment efforts and whether a prospective or current worker has paid job placement fees or similar compensation as a condition of employment. Fees that workers may not pay include, but are not limited to, government-mandated fees that are prohibited under DOL rules, petition fees, attorney fees, recruitment costs and any fees that are conditions of employment.  If you have any questions regarding the H-2 visa program or permissible fees please contact our office  at info at harms-law.com.

Here is the link to the full press release: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b251b3fd51671310VgnVCM100000082ca60aRCRD&vgnextchannel=e7801c2c9be44210VgnVCM100000082ca60aRCRD

USCIS Trying to Keep Startups in the U.S.

The USCIS has announced a new initiative designed to attract and retain foreign entrepreneurs, particularly in the high-tech sector, who wish to launch start-up companies in the U.S.   This initiative will include changes to current visa programs and training for visa officers with the objective of enabling more entrepreneurs to gain entry into the U.S. and of bringing more speed and efficiency to the visa-application process.

Here are some of the proposed changes:

EB-2 Immigrant Visas: foreign entrepreneurs will be eligible without a specific job offer, as long as they demonstrate that their business endeavors will be in the U.S. national interest.

H-1B Visas: The government is also seeking to bolster use by foreign entrepreneurs of H-1Bs. A sole entrepreneur can now qualify for an H-1B if the individual’s employment is decided by a corporate board or shareholders of the start-up company.

EB-5 Investor Visas: Additionally, the EB-5 investor program, which enables foreign investors and their families to qualify for green cards if they invest at least $500,000 in a U.S. project that generates at least 10 jobs.

If you have any questions about this new government initiative or any of these visas please contact our office at info at harms-law.com.

Here is a link to the Wall Street Journal article discussing this initiative: http://online.wsj.com/article/SB10001424053111904292504576482573203358158.html

Department of Justice Challenges Alabama Immigration Law

The Department of Justice challenged the state of Alabama’s recently passed immigration law, H.B. 56, in federal court this week stating that the law conflicts with federal immigration law and undermines the federal government’s immigration enforcement priorities and objectives.  Alabama’s law is designed to affect virtually every aspect of an unauthorized immigrant’s daily life, from employment to housing to transportation to entering into and enforcing contracts to going to school. H.B. 56  criminalizes mere unlawful presence and, like Arizona’s law, expands the opportunities for Alabama police to push aliens toward incarceration for various new immigration crimes by enforcing an immigration status verification system. The federal government’s suit is consistent with the department’s position in United States v. Arizona, in which the department last year successfully obtained a preliminary injunction against Arizona’s S.B. 1070.  The government’s brief said that the mandates that H.B. 56 imposes on Alabama law enforcement may also result in the harassment and detention of foreign visitors, legal immigrants and even U.S. citizens who may not be able to readily prove their lawful status.  The government further argues that the Alabama law would impose  burdens on children by demanding that students prove their lawful presence, which could discourage parents from enrolling their children in school.

Updated H-1B Count

As of July 22, 2011 approximately 21,600 H-1B cap-subject petitions were receipted.  Additionally, USCIS has receipted 13,300 H-1B petitions for aliens with advanced degrees.   USCIS started accepting H-1B petitions subject to the fiscal year 2012 on April 1, 2011. The current annual cap on the H-1B category is 65,000. Not all H-1B non-immigrants are subject to this annual cap.  If you are interested in the H-1B program or have any questions, please contact our office at info at harms-law.com.

Governor signs private-scholarship part of Dream Act

California Gov. Jerry Brown signed legislation Monday extending scholarship opportunities to undocumented immigrant students, part of landmark “Dream Act” legislation. A more controversial portion of the act, to allow undocumented students to receive publicly funded financial aid, is still pending in the Legislature.  The two bills differ from a federal proposal with the same name in that the state Dream Act does not provide a path to citizenship.

The bill Brown signed today, Assembly Bill 130, allows students who are in the country illegally but qualify for in-state tuition to apply for private financial aid. The Democratic governor is likely this year to sign the broader companion bill, Assembly Bill 131, allowing illegal immigrants to seek public aid, including Cal Grants. His predecessor, Republican Gov. Arnold Schwarzenegger, vetoed similar legislation.

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/07/26/BA7S1KES77.DTL

U.S. Reruns Visa Lottery

 The State Department on Friday published the results of a new lottery to give residents’ visas to 55,000 foreigners around the world, running the drawing for the second time after a computer error forced officials to cancel the first one.

The new round of the lottery was deeply disappointing to about 22,000 foreigners who were advised by the State Department in May after the first drawing that they had received the residents’ visas, known as green cards. Officials determined that it had not been truly random, as the law requires, and the winners were notified days later that they would not be receiving documents to live permanently in the United States after all.  If you have questions about the Diversity Visa Lottery Program please contact our office.

Here is the link to the results of the new lottery: http://travel.state.gov/visa/immigrants/types/types_1322.html

I-9 Audits and Business

While the administration of George W. Bush focused on headline-making raids that resulted in arrests of immigrant workers, the Obama administration has gone after employers with ICE’s I-9 audits on the theory that employers who hire unauthorized workers create the demand that drives most illegal immigration. Nationally, from fiscal year 2009 to date, ICE has initiated Form I-9 inspections against nearly 4,000 businesses resulting in fines of nearly $7 million. Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual’s identity and employment eligibility document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual. Additionally, an employer must ensure that the employee provides certain information regarding his or her eligibility to work on the Form I-9.  The New York Times ran a story on July 14, 2011 that discussed the effect that an I-9 audit can have on a business.  The article focuses on the case of a California employer, David Cox, whose I-9 audit revealed that 26 of his 99 employees were not authorized to work in the United States. Because ICE determined he had acted reasonably in hiring them, Mr. Cox was not fined or held criminally liable. But after confirming that the 26 employees could not produce authentic documents, he was forced to fire them.  The article discusses the economic effect that this had on his business.

Here is the link to the full article:

http://www.nytimes.com/2011/07/14/business/smallbusiness/how-a-small-business-can-survive-an-immigration-audit.html?_r=1&sq=immigration&st=cse&scp=3&pagewanted=all

Immigration Protests at the All Star Game

Jon Stewart again offered some humor on the humorless situation in Arizona in his report titled  The Naturalized.  Last year Arizona Governor Jan Brewer signed a bill that made it a crime to be an undocumented immigrant in the state.  The law is being challenged in federal court.  On Tuesday critics of the polarizing immigration law in Arizona protested in triple-digit heat outside Major League Baseball’s All-Star Game in downtown Phoenix, drawing sideways glances from fans who were more interested in getting to the game. The protests were not as big as predicted.   Last year after SB1070 initially passed, activists called for baseball to move the All-Star game from Arizona. Commissioner Bud Selig declined and said it was a political issue, prompting critics to ask players, coaches and fans to boycott the game as part of a wider call for companies to stop doing business with Arizona. Although at the time several baseball players spoke out against the law and said they might skip the All-Star game if picked, the protests largely fizzled out and there was no indication Tuesday that any players or coaches wouldn’t play because of the law.

Two separate pro-immigrant groups protested outside of Chase Field before the game, with one quietly passing out white ribbons that symbolized peace and unity and the other loudly chanting in bullhorns and marching in circles with signs that read “Boycott hate” and “Stand with us.”

August 2011 Visa Bulletin

The new visa bulletin is out.

Family based petitions are backlogged, with the most recent date at July 2008. 

Employment-based categories have moved a bit since last month and are as follows:

•  EB-1 is current for all countries
•  EB-2 is current, except for India (April 2007) and China (April 2007)
•  EB-3 is at November 2005 for all countries, except for India (June 2002), China (July 2004), and Mexico  (November 2005)
•  EB-3 other workers is at May 2005 for all countries, except India (June 2002), China (April 2003) and Mexico (May 2005)
•  EB-4, religious workers, EB-5, and targeted employment areas and regional centers are all current.

The full visa bulletin can be found at http://www.travel.state.gov/visa/bulletin/bulletin_5518.html

Updated H-1b Count

As of July 1, 2011 approximately 18,400 H-1B cap-subject petitions were receipted.  Additionally, USCIS has receipted 11,900 H-1B petitions for aliens with advanced degrees.   USCIS started accepting H-1B petitions subject to the fiscal year 2012 on April 1, 2011. The current annual cap on the H-1B category is 65,000. Not all H-1B non-immigrants are subject to this annual cap.  If you are interested in the H-1B program or have any questions, please contact our office at info at harms-law.com.